Citation Nr: 1140425
Decision Date: 11/01/11 Archive Date: 11/16/11
DOCKET NO. 08-00 063A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a left hip disability.
REPRESENTATION
Appellant represented by: Shelly M. Campbell, Attorney
ATTORNEY FOR THE BOARD
M. G. Mazzucchelli, Counsel
INTRODUCTION
The Veteran served on active duty from July 1979 to January 1990.
This matter comes before the Board of Veterans' Appeals (Board)
from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
The RO issued a statement of the case in November 2007. Subsequently, the record has been expanded to include recent VA treatment records as well as lay statements submitted by the Veteran's representative in August 2011. The Veteran did not include a waiver of consideration of that evidence and it must be reviewed by the RO. See 38 C.F.R. § 20.1304(c).
The Veteran's representative has contended that the VA examination conducted in April 2007 was inadequate as the examiner apparently did not review VA medical records and did not make reference to treatment of the Veteran's left hip in September 1993, three years after his separation from service. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, another examination is necessary in order to properly adjudicate the left hip claim.
The representative has also raised the issue of secondary service connection. In addition to service connection based on incurrence or aggravation in service, a disability may also be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Thus, the examination should include an appropriate opinion considering whether the Veteran's service connected arthritis of bilateral ankles and lumbar spine has caused or aggravated any current left hip disorder(s).
Accordingly, the case is REMANDED for the following action:
1. The RO should contact the Veteran to ascertain the places at which he has received relevant treatment since February 2007, and attempt to obtain copies of the records of any such treatment the Veteran identifies.
2. The Veteran should be afforded a VA examination to determine the nature and etiology of his claimed left hip disability. The claims folder must be made available to the examiner for review. All necessary tests should be conducted. The examiner should provide an opinion whether any current left hip pathology is at least as likely as not (50 percent or greater probability) related to (a) service; or (b) an incident in service; or (c) proximately due to or the result of his service-connected arthritis of the lumbar spine and both ankles; or (d) aggravated or worsened by his service-connected arthritis of the lumbar spine and both ankles. If it is determined that the Veteran's left hip pathology, if shown, was aggravated by his service-connected arthritis of the ankles and/or lumbar spine, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation.
All opinions expressed by the examiner should be accompanied by a complete rationale.
3. Then, readjudicate the Veteran's service connection claim on appeal, with application of all appropriate laws and regulations and consideration of all evidence added to the record since the issuance of the November 2007 statement of the case. If the decision with respect to a claim remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).